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ON 



€l)c Bounliarg 



BETWEEN 



GEORGIA AND SOUTH CAROLINA. 




PRINTED AT THE SOUTHERN BANNER OFFICE 
1852. 



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EXECUTIVE DEPARTMENT, 

MiLLEDGEVILLE, 18th Oct., 1852. 

To His Excellency, Governor Means, Governor of the 

State of South Carolina : 

Sir : — I receivea, through Col. Hajne, Attorney 
General of your State, your communication, callino- my 
attention to the question of the jurisdiction of the State 
of Georgia over the Savannah River. 

On the 25th August I had an interview with Col. 
Hayne, which led to his communication of the 10th of 
September, furnishing me with his report to your Ex 
cellency on the subjects embraced in this question of 
jurisdiction. I have been prevented from making an 
earlier reply, and now write under circumstances unfa- 
vorable to as full an investigation of the subject as I 
had intended. 

The difficulties which have heretofore existed be- 
tween the South Carolina Rail Road Company and the 
city of Augusta, about the crossing of the Savannah 
River at Augusta by that Company, are the causes al- 
ledged for the necessity of this investigation — and 
those causes being removed by an amicable arrange- 
ment between the parties in interest, it would seem al- 
most unnecessary to pursue the inquiry. The question 
of the jurisdiction of the Savannah River, however, is 



2 
of much Importance to the State of Georgia, and should 
not rpiiiain in doubt a day longer than is necessary for 
a proper and permanent decision of it — and I shall, 
therefore, comply most readily with my promise to Col. 
Hayne, to submit to your Excellency my views on that 
subject, with the reasons which have brought my mind 
to the conclusions lo which it has arrived. 

The question is, Has the State of Georgia jurisdic- 
tion over the whole of the Savannah River 1 In other 
words, where is the boundary line between South Car- 
olina and Georgia ? On the part of Georgia it is con- 
sidered that the Savannah River is included within her 
hmits — whilst it is contended by Col. Hayne, on the part 
of South Carolina, that the middle of the most northern 
stream is the true boundary line between the States — 
thus claiming for S. Carolina the same rights, in refer- 
ence to that stream, as are granted to Georgia, except 
where the stream divides — in such cases it is admitted 
that the right of Georgia extends to the middle of the 
northern branch. The solution of this question must 
be found in the proper answer to the three following 
propositions : 

First — What was the boundary of Georgia in this 
respect, as estabhshed by her charter in 1832 ? 

Second — What construction has been placed upon 
the language used in the charter by the parties in in- 
terest ? 

Third — W^hat powers and rights have been exer- 
cised under that charter, and the uniform construction 
placed upon it I 

It is strange that there should be any difficulty in as- 
certaining the precise language of the charter of 1732 ; 
and yet the whole argument of Col. Hayne rests upon 



3 

a misappreliension of the language of that charter, as 
I shall endeavor to show: an error into which he 
very naturally fell, as he finds his authorities in our 
books. I here insert an extract from the charter of 
1732 to show the language employed in describing the 
boundary and the extent to which it was intended to 
aj)ply. It is as follow s : 

" And whereas, the said corporation intend to settle 
a colony, and to make an habitation and plantation on 
that part of our province of South Carolina, in Amer- 
ica, hereafter described. Know ye, that we greatly de- 
siring the happy success of the said corporation, for 
their further encouragement in accomplishing so ex- 
cellent a work, have, of our foresaid grace, certain 
knowledge and mere motion, given and granted and by 
these presents, for us, our heirs and successors, do give 
and grant to the said corporation and their successors, 
under the reservation, limitation and declaration here- 
after expressed, seven undivided parts, the whole in 
eight equal parts to be divided, of all those lands, coun- 
try and territories, situate, lying and being in that part 
of South Carohna, in America, which lies from the 
most northern part of a stream, or river there, com- 
monly^ called the Savannah, all along the seacoast to 
the southwards, to the southern stream ol a certain oth- 
er great water or river, called the Altamaha, and west- 
wardly from the heads of the said rivers respectively 
in direct hnes to the South seas." — Schley s Digest, 
p. 435. 

If the above extract be correct, it puts an end to all 
controversy on this subject — nothing can be clearer or 
more conclusive. By this provision of the charter of 
1832, the boundary Una between South Carolina and 
Georgia is to be found " at the most northern part'' of 
the river Savannah. I apprehend that no one will en- 
tertain the proposition for a moment, that '*the most 



4 

northern part" of a river is to be found in the middle 
of either the main stream, or where the stream di- 
vides, in the middle of the northern branch of it. Up- 
on that point I shall offer no argument, feeling well 
satisfied that the question will be readily yielded, if it 
can be made satisfactory to appear that the language 
which I have quoted from the charter, is the correct 
version of that instrument. After the most dihgent in- 
quiry, which circumstances have permitted me to make, 
I have been able to find the charter of 1832, given in 
extenso, only in the following works : Schley's Digest, 
429; Hotchkiss' Statute Laws of Georgia and State 
Papers — 20; McCall's History of Georgia — 1 vol., 
329; Stevens' History of Georgia — 1 vol., 476. In 
each of these books the charter will be found in full, 
setting forth the boundaries of the colony, as I have 
already quoted from Schley's Digest, It seems to me 
that the fact, that the charter wherever found in full, 
contains the same language, should be regarded as con- 
clusive evidence of its correctness, and it ought not to 
be questioned upon the authority of mere extracts 
from the original instrument. 

In this connection I will refer as briefly as possible 
to the authorities relied upon by Col. Hayne in sup- 
port of the proposition, that the boundary of Georgia 
is limited to the middle of the northern stream of the 
Savannah river. He says: 

"It was in 1730 that Lord Percival, James Ogle- 
thorpe and others, petitioned the Crown for the estab- 
lishment of a colony in South Carolina. In the re- 
port on this petition to the Lords of the Privy Coun- 
cil of December in that year, the boundary recommen- 
ded, was 'the most navigable and largest branches of 
the Savanjiah." — IVatkins Digest, p. 729. 



"In another report to the Privv Counci', ';ihoiit set- 
tUng a western houndary to the colon} in fc^onth C'ar- 
ohna in 1731,' the territory is spoken of as 'l)etueen 
the rivers Savannah and Akauiaha.'" — Watkins Di- 
gest, p. 730. 

It is a sufficient reply to any ar^^unient to he drawn 
from these references to say, that tlie houndary icas not 
established, as recommended hy either of these reports. 
This fact is admitted by C(d. Hayne, who seeks to 
show that the language of the charter is " from the 
northern stream of a river commonly called the Savan- 
nah," &c. &c. Tiie truth is, that a very strong Infer- 
ence can legitimately be drawn from the several re- 
ports made by the Board of Trade to the Lords of the 
Piivy Council (from which Col. Hayne bas taken the 
above extracts) in favor of the claim of Georgia to the 
whole of the Savannah river. It will be found upon 
an investigation of that matter, that on each occasion 
when the reports were referred back to the Board of 
Trade, the reference was accompanied with instruc- 
tions to make the report more favorable to the petition- 
ers, on the very question of their proposed boundaries, 
and hence it is that we find the boundaries, as finally 
granted in the charter, more liberal to Georgia than 
was at first proposed. It is more than probable that 
much of the misapprehenston on this subject has grown 
out of the difference between these very reports, and 
the charter itself, as it was in fact granted. 

The next authority relied upon by Col. Hayne is 
thus referred to by him : 

"In the charter of George II, 1732, creating Lord 
Percival, Oglethorpe and others, ' Trustees for estab- 
lishing the colony of Georgia in America,' the descrip- 
tion of the grant is in these words: — 'All those lands, 



6 

countries aii(] tiTritories. situate, Iviun; and being in 
that part ol South Carolina, in America, which hes 
trom the northern stream ot a river tiiere, commonly 
called the Sa>'annah, all along the seacoast to the 
southward unto the most southern stream of a certain 
other great river called the Altamaha.'" — Watkins 
Digest, y. 731. 

It is upon this version of the cliarter, as taken from 
Watkins' Digest, that the argument is based, in favor of 
the claim of South Carolina to the middle of the Sa- 
vannah river. I have already stated tliat it differs 
from the language employed in all the books where 
the charter is given in extemo. I have no doubt it w^as 
obtained by Watkins from a report made to Congress 
in 1796, by Charles Lee, Attorney (jeneral, in compli- 
ance with a resolution oi Congress, which required him 
" to collect, digest and report to the next Congress the 
charters, treaties ond other documents relative to, and 
explanatory of, the title to the land situate in the south- 
western parts of the United States," &c. &c. It wall 
not be contended, I trust, that a digested extract pre- 
parAl by Mr. Lee, and furnished to him from ii printed 
copy by Mr. Chalmers, of the " Office of Trade at 
Whitehead," should stand as authority against the ex- 
plicit language of the charter, as contained in every 
work which professes to give that charter in full. The 
argument of Col. Hayne proceeds to refer to his next 
authorities in the following language : 

"In Watkins' Digest, page 732, there appears what 
purports to be ' an extract trom a state of the prov- 
ince of Georgia in 1740,' which contains the expres- 
sions of the charter \from. the most northern stream of 
the river Savannah.' The ' surrender by the trustees of 
Georgia to the King of all their rights under the cliar- 
ter,' dated in 17.02, uses si?nilar hmguaiTe. 'J'be 



7 

coimnission to Ciovcrnor llcvuolds in 17"; I, rlcscrihes 
the bouiuiary in tlusanic way ; ami again, in tlieconi- 
n)ission to (iovernor Wright in 17()4, wo lind "oiir col- 
ony of Georgia, in America,' describeil as ' lying //Y>m 
the most northern stream of a river there, commonly 
called the Savannah,' " Sic. 

I have given these extracts at length for the pur- 
pose not only of doing the most ample justice to C'ol. 
Hayne, but also for the purpose of calling your atten- 
tion to the striking fact, that the language used in the 
difi'ereut extracts vary from each other, as well as from 
the language of the charter itself, as 1 have before giv- 
en it, thus showing that these extracts arc nothing more 
than a mere analysis, w liich does not profess to give the 
exact language of the charter ; and certainly none of 
them were ever prepared in reference to being made 
the basis of an argument, to set aside the plain and 
manifest language of an instrument of which they pro- 
fess to be, notbing more than an analysis or recital. — 
This remark is peculiarly true of these last extracts, 
which I have quoted. The surrender by the trustees 
of Georgia, in 1752, contains a recital of a portion of 
the charter of 1732, and from that recital the forego- 
ing extract was made. In such an instrument perfect 
accuracy was neither desired nor contemplated, and 
hence we find language used which was considered by 
the authors as expressive of the same idea, though no- 
in the same words of the charter. In my examination 
of this subject I have found a very pointed and striking 
proof of the fact, that the language employed in these 
various extracts, was regarded by the authors as mean- 
ing the same thing as the language used in the charter 
itself. McCall in his history of Georgia, as already re- 
ferred to, gives the charter in full, and correctly ; and 



8 
yet ill speaking of this subject, as will be found on the 
lOth page of the same volume, uses the very language 
of tlie extracts relied upon by Col. Hayne — that is, 
" which lies from the most northern stream of a river 
there called Savannah," &c. Could a more forcible 
illustration be given, than the one here furnished, of the 
justice of my criticism ? and am I not warranted in 
accounting for these apparently conflicting authorities 
upon the hypothesis tiiat the term, "most northern 
stream," was used as synonymous with " the most 
northern part of a stream?" McCall certainly relied 
upon the correctness of the charter which he published 
— and if, with that charter before him, he uses the same 
language with the trustees in their surrender, it can on- 
ly be accounted for upon the hypothesis I have stated. 

The commissions to Governor Reynolds and Gov- 
ernor Wright very naturally followed the recital of the 
surrender in language as they did in time, and do not 
therefore require additional comment. 

Having now reviewed all the authorities relied upon 
to ascertain the boundary of Georgia, as established by 
the charter, I feel justified in concluding that the lan- 
guage used in the charter, as given in full by Schley^ 
Hotchkiss, McCali and Stevens, is the true and correct 
version of that instrument, and that, therefore, the boun- 
dary of Georgia extends to "the most northern part of 
the Savannah," and includes, of necessity, the whole 
of that river within her jurisdiction. If, however, there 
should still exist doubts as to the exact language of the 
charter, we are certainly well founded in the conclu- 
sion that the invariable construction placed upon the 
term " the most northern stream," &c., rendered it sy- 
nonymous with the other language contended for by 



9 

Georo-ia. In either event the rijrht of Georjiia to the 
whole of the river is well founded, unless surrendered 
by some subsequent act, and I now proceed to exam- 
ine that branch of the subject. 

It is urged against the claim of Georgia to (he Savan- 
nah River that, by the treaty of Beaufort, she has as- 
sented to the Savannah River as a boundary line, and 
yielded any claim which she might have held under the 
original charter. From that opinion I dissent. I am 
aware that there is a prevailing idea that this question 
was settled by the Convention of Beaufort. A care- 
ful examination of the subject, however, will show that 
such is not the fact — and that the treaty of Beaufort 
left the question of the jurisdiction over the Savannah 
River just where they found it. and very properly so, 
for it was not submitted to them, and constituted no 
part of the controversy which led to that Convention. 
By that Convention certain rights of navigation on 
the Savannah River were granted to Carolina, and 
nothing more. A controversy of an exciting charac- 
ter had grown up between South Carolina and Geor- 
gia, in reference to certain territory which was involv- 
ed in the question of boundary between the two States. 
Carolina made an appeal to the Congress of the Uni- 
ted States on the subject, which led to the appointment 
of commissioners on the part of the two States, who 
met and, on the 28th April, 1787, concluded the Con- 
vention of Beaufort for the settlement of the questions 
of difference, which had been submitted to them. To 
a correct understanding of that treaty, its bearings and 
effect, we must look to the reasons assigned for its as- 
semblage, and the questions submitted to its decision, — 
For that purpose I call your attention to the preamble 



10 
of the Convention, in which is set forth, with much 
care and precision, the purposes for which it met. It 
is as follows : 

" Whereas, the State of South Carolina did hereto- 
fore present a petition to the Unitcid States in Con- 
gress assembled, and did therein set forth, tiiat a dis- 
})ute and diiference had arisen and subsisted between 
the States of South Carolina and Georgia concerning 
boundaries; and the States claiming respectively the 
same territories, and that the case and claims of the 
State of South Carolina was as j'ollows, that is to say : 
• Charles the II, King of Great Britain, by charter da- 
ted th<^ 24th day of March, in the fifteenth year of his 
reigM, granted to eight persons as therein named, as 
lords proprietors thereof, all the lands lying and be- 
ing within his dominions of America, between thirtv- 
one and thirty-six degrees of south latitude, in a direct 
west line to the South Seas, styling the lands so de- 
scribed ' The Province of Carolina :" That on the 
tliirtieth day of June, in the seventeenth year of his 
reign, the said King granted to the said lords proprie- 
tors a second charter, enlarging the bounds of Caroli- 
na, viz: fiom twenty-nine degrees of north latitude to 
thirty-six degrees, thirty minutes, and from those points 
on the sea coast west in a direct line to the South 
Seas: That seven of the said proprietors of Carolina 
SDid and surrendered to George the II, late King of G. 
Britain, al! their title and interest in the said Province, 
and the share of the remaining ])roprietor was separa- 
ted trom the King's, and allotted to him in the north 
pnrt of North Carolina : That Carolina was afterwards 
d.vided into two provinces, called North and South 
Carolina: That by a charter dated the ninth day of 
June, George the II, King of (ireat Britain, granted to 
certain persons therein named, all the lands lying be- 
tween the rivers Savannah and Altamaha, and between 
lines to be drawn from the heads of those rivers, re- 
spectively, to the South Sea, and st} led the said colony 



11 

' Georgia :' That h\ a treaty of peace, concluded at 
Paris on the tenth day of February, one thousand sev- 
en hundred and sixty-three, the river Mississippi was 
declared to be the western boundary of the North 
American Colonies: That the Governor of South Car- 
olina, in the year one thousand seven hundred and 
sixty, conceivins: that the lands southward of the Al- 
taniaha still belonj^ed to South Carolina, granted sev- 
eral tracts of the said lands: That the government of 
Georgia complained to the King of Great Britain, re- 
specting those grants as l)eing for lands \\ithin its lim- 
its, and therefore His Majesty, by proclamation, dated 
the seventh day of October, one thousand seven hun- 
dred and sixty-three, annexed to Georgia ail the lands 
lying between the rivers Altamaha and St. Marys, the 
validity of the grants passed by the Governor of South 
Carolina as aforesaid, remaining, liowever, acknowl- 
edged and uncontested, and the grantees of said land, 
or their representatives, still holding it as their le^al 
estate: lymt South Carolina claims iJie lands hj'ng 
heticeeri the Notth Carolina line, and the line run due 
west j rum the mouth of the 2\igalo River to the Missis- 
sijjpi, because, as the said State contends, the rirer Sa- 
vannah loses that naine at the conjluence of Tu<ralo 
and Keoicee Rivers, consequently that spot is the head 
of Savannah River. The State of Georgia en the 
other hand contends that the source of the Keowee Riv- 
er is to he considered as the head of the Savannah Riv- 
er : T' hat the State of South Carolina also claims all 
the lands lying between aline to he drawn from the head 
of the rbier St. Marys, the head of the Altamaha, to 
the Mississippi and Florida, being, as the said S^a^e con- 
tends, within the limits of its charter, and not annexed 
to Georgia by the said proclamation of one thousand 
eight hundred and sixty-two. The State of Georgia^ 
on the other hand, contends that the tract of country 
last mentioned is a part of that StateJ' — M. c^ C Di- 
gest, p. 662-663. 

I have given all of the preamble which is nccessar}- 



12 

to a correct understanding of the subject, from which 
it will be seen that the questions in dispute between 
Carolina and Georgia, and for the settlement of which 
this Convention assembled, had no reference to the 
subject of the jurisdiction of the Savannah river. The 
concluding paragraphs above quoted, point out very 
clearly the claims of the two States to certain lands, 
which it was contemplated should be adjusted, and in 
fact were adjusted, by that Convention. At that time 
South Carolina did not question the right of Georgia 
to the Savannah River. By an act of the Legislature 
of this State, of 1783, (three years previous to the 
meeting of the Convention at Beaufort,) it had been 
enacted, ordered and declared, " that the limits, boun- 
daries, jurisdiction and authority of the State of Geor- 
gia, do aud did, and of right ought to extend from the 
mouth of the river Savannah along the north side there- 
of, and up the most northern stream or fork of the said 
river to its head, or source, &c. &c. — Watkins' Digest, 
p. 749. Carolina was thus duly notified of the claim 
of Georgia in this respect ; and the urgency with which 
she had pressed her claims to the lands in dispute, show 
very clearly that she was no indifferent spectator to 
the claims of Georgia in this regard. It cannot be sup- 
posed that Carolina would have overlooked so impor- 
tant an item in the boundary question as is involved in 
this question, if she had intended to contest the claim, 
thus solemnly made by Georgia " /o the north side of 
the Savannah RiverT The omission to include it in 
her bill of complaint against Georgia, is one of many 
circumstances which conspire, with convincing power, 
to show that, at that time, she recognised the right of 
Georgia, as set forth in her boundary act of 1783. It 



13 

was under these circumstances, and for these purposes, 
that the Convention of Beaufort met — all of which 
should be borne in mind in construing its action. — 
Among other articles in that treaty we find the follow- 
ing: 

"Article the First. — The most northern branch 
or stream of the river Savannah, from the sea or mouths 
of such stream to the fork or confluence of the rivers 
now called Tugalo and Keowee ; and from thence 
the most northern branch or stream of the said river 
Tugalo, till it intersects the northern boundary line of 
South Carolina, if the said branch or stream of Tuga- 
lo extends so far north, reserving all the islands in the 
said rivers, Savannah and Tugalo, to Georgia ; but if 
the head spring or source of any branch or stream of 
the said river Tugalo, does not extend to the north 
boundary line of South Carolina, then a west line to 
the Mississippi, to be drawn from the head spring or 
source of the said branch or stream of Tuj^alo River, 
which extends to the highest northern latitude, shall 
forever hereafter form the separating limit and bounda- 
ry between the States of South Carolina and Georgia." 

"Article the Second. — The navigation of the 
river Savannah at and from the bar and mouths, along 
the northeast side of Cockspur Island, and up the di- 
rect course of the main northern channel, along the 
northern side of Hutchinson's Island, opposite the town 
of Savannah, to the upper end of the said island, and 
from thence up the bed or principal stream of said river 
to the confluence of the rivers Tugalo and Keowee, 
and from the confluence up the channel of the most 
northern stream of Tugalo River to its source, and 
back again, by the same channel, to the Atlantic Oce- 
an, is hereby declared to be henceforth equally free to 
the citizens of both States, and exempt from all duties, 
tolls, hinderance, interruption and molestation whatso- 
ever, attempted to be enforced by one State on the 
citizens of another ; and all the rest of the river Sa- 



14 

vamiah to the soutliward of rlip forejjoinj^ description, 
is acknowl'jdiied to l)e the exclti>>ivu riglit ot" tiie State of 
Georgia/" — .1/. ty C. Digest,]). 664. 

It -is claimed that the first of the foregoing articles 
settled the bouiidarv between the two States, to which 
I reply that the prcanihle to tlie Convention which pnr- 
portsto give the reasons for its assemblage, shows that 
the bonndaries in this res])ect was not a mooted question. 
So far as we are informed, either by documents or tra- 
dition, there was no serious difference of opinion on this 
point between the two States, and the insertion of this 
article in the treaty can only be regarded as a declara- 
tion in favor of the boundary line, as claimed by Geor- 
gia, nnd acquiesced ifihy Carolina. The language us- 
ed in this article differs from that found in the charter 
as published i/i extenso. It also differs iVom the extract 
as published in Watkins, as well as from the act of the 
Legislature of 1785 ; yet it is virtually the same as 
that used by McCall, and by the trustees of Georgia in 
their surrender of their charter to the King, which I 
have shown was regarded as synonymous with the 
terms of the original charier. We shall see hereafter 
strong confirmatory evidence of the correctness of this 
view. If this first article w as intended to alter the 
boundary line, and change it from the ''moat northern 
part of the river" to the middle of the stream, it might 
be well asked where was the necessity for the second 
article of the treaty, which is quoted above f The ob- 
jectof this article under the construction which 1 have 
placed upon the Convention, is manifest; It confers 
the right of navigation of the Savaiuiah River upon 
the citizens of South Carolina, which, it seems, was 
not previously possessed by them. Under a difterent 



15 

construction, however, ot" the Convention, and one 
which would make the ujiddle of the f^avannah Kiver 
the houndary line, this .-"ecoud article would heconie nu- 
gatory, and we should be unable to assign a satisfactory 
reason tor its consideration. 

The inquiry may arise, upon tliis view oftlie treaty 
of Beaufort, why was the lirst article of this treaty in- 
serted in it if it was no!: intended to dehne the boun- 
dary line between the two States along the stream of 
the Savannah l\iver ? A n)ost satisfactory answer to 
such an inquiry is furnished by the language of the 
preamble to the Convention. That preamble, as be- 
fore quoted, set forth as a part of the claim of South 
Carolina, " That South Carolina claims the lands lvin«: 
between the North Carolina line, and the line run due 
west from the mouth of Tugalo River to the Missis- 
sippi, because, as the said State contends, the river Sa- 
vannah loses that name at the conjluence of Tugalo and 
Kewoee Rivers, consequently that spot is the head of 
Savannah River.'' Thus it will be seen that this iirst 
article was inserted to dispose of the claim of South 
Carolina to the lands lying above the confluence of the 
Tugalo and Keowee Rivers. That claim constituted 
Me a/z/?/^^/;^^ of difference between the two States, 
connected with the Savannah River, and this article 
aajusts and disposes of that matter. This reference 
show^s, as indeed do all the circumstances connected 
with that Convention, that the claim of Georgia, as it 
then existed, " to the north side of the Savannah Riv- 
er," was a conceded point, and not involved in the 
mooted questions which had led to, and were then ad- 
justed by the treaty of Beaufort. 

The position then taken by Carolina, and upon 



16 

which she founded her claim to the lands in dispute, 
forecloses the argument now offered in her hehalf to an 
equal jurisdiction over the waters of the Savannah 
River. If she was right at that time in assorting that 
the Savannah River terminated at the confluence of 
the Tugalo and Keowee Rivers, upon the correctness 
of which assertion her whole claim in this respect vest- 
ed, then it is not true, as now contended hj her, that 
the terms of the charter of 1832, to wit — "northern 
stream," or "the most northern stream," or "the 
most northern part of a stream commonly called the 
Savannah," was intended to apply to that part of the 
river where it divided, for below the confluence there 
was but one stream. The only satisfactory solution of 
this rjiatter is to be found in that uniform construction of 
the charter of 1732, which gives to Georgia the whole 
of the Savannah River. 

Mr. John Houstoun, one of the commissioners on 
the part of Georgia, refused to sign the Convention of 
Beaufort, and in his protest appended to the treaty, 
(M. & C. Digest, p. QG6y) places his refusal upon two 
grounds. The first it is unnecessary to consider, as it 
has no reference to the subject of our present investiga- 
tion. The second, however, bears directly upon it, and 
exhibits not only the opinion, held by Mr. Houstoun 
in reference to our boundary, but also shows, by clear 
and unavoidable inference, that no such construction 
was placed upon the first article of the treaty by the 
commissioners who made it, as now contended for by 
those who seek to limit the boundary of Georgia to a 
thread in the middle of the river. In this protest Mr. 
Houstoun says : 

" Secondly. As to the free navigation of the river Sa- 



17 

vannah now given up to South Carolina, I conceive 
this point is, in the first place, not an object of our com- 
mission ; but if it was, however disposed I might be 
always to wish an indulgence to a sister State on this 
head, (which I belive has hitherto been the case,) yet 
I am not inclined to give that indulgence the color of 
a right. Were we settling commercial regulations 
with South Carohna, to permit the free navigation of 
the river, it might be just and proper, and the title then 
would depend on and be derived from such agreement ; 
but to yield this point as a claim, in the present in- 
stance, implies that the right has been ab origine in 
South Carolina. Such a position would be inconsis- 
tent with my idea of our boundary ; for if we hold the 
sovereignty "from the most northern part of the stream," 
it seems to me the exclusive right of navigation fol- 
lows of course. This is neither a forced or new con- 
struction of our charter, but has uniformly been the 
opinion, for a series of years past, of most people in 
Georgia ; and all the documents adduced tend only to 
show the point has been contested, but never decided 
on. On the whole, although I should be amongst the 
foremost to concede to this neighborly privilege, in re- 
turn for some other perhaps less valuable to the citizens 
of South Carolina, yet I should wish to see it hela by 
them as a grant, under some restrictions, from Geor- 
gia, and not a right proved and established at the pres- 
ent meeting." — M. &{ C. Digest, p, QQQ-6Q1. 

From the language here used by Mr. Houstoun, it 
will be observed that he was extremely tenacious of 
the right of Georgia to her boundary line, as set forth 
in the act of her Legislature of 1783; and believing 
that the right of navigation granted to Caroluia by 
the second article of the treaty, conflicted with that 
right, he refuses to sign the Convention. He does not 
consider the declaration of the boundary line, as set 
forth in the first article, as^at all objectionable — at least 



18 
he makes no objection to it ; and had he regarded it 
as altering the boundary Hne of the State, he would 
doubtless have incorporated it in his protest, as an ad- 
ditional and more weighty reason for his refusal to sign 
the treaty. It is very clear to my mind that neither 
Mr. Houstoun, nor any other member of that Conven- 
tion, placed upon the first article of the treaty the con- 
struction now sought to be put upon it. This protest 
of Mr. Houstoun was drawn up when he was fresh 
from the discussions of the Convention, when he had 
heard the views presented by the commissioners on 
both sides. If, on the part of Carolina, it had been 
claimed, or on the part of Georgia conceded, that the 
boundary line between the two States had been alter- 
ed by the first article of the treaty, he would never have 
omitted from his protest so important an item. His 
mind, as is shown by the extract I have given, was 
directed to this particular point, and the only objection 
he files to this part of the treaty, grows out of the pro- 
visions of the second, and not the first article. It is, 
however, alone upon the provisions of the^/-5^ article 
that the argument is now based, to sustain the position 
that, by that Convention, Georgia assented to a change 
in her boundary line, from the " most northern part" to 
" the middle of the Savannah river." 

I apprehend that the argument will not now be 
changed, and the right of Carolina made to rest upon 
the second article of the treaty. If, however, it should 
be attempted, it will be a sufficient reply to say, that all 
the rights and immunities granted to Carolina by that 
second article will be sacredly observed by Georgia. — 
They extend to the right of navigation^ and no farther. 



19 

The boundary line for all other purposes than those of 
navigation remains unchanged and unaffected. 

If additional arguments were required to sustain the 
views, which I have here presented in favor of the claim 
of Georgia to the whole of the Savannah river, they 
would be furnished in the fact that the right of juris- 
diction over that river has not only been exercised 
without question or hindrance, for a number of years, 
but has been acquiesced in by South Carolina. I am 
not aware that on any occasion Carolina has serious- 
ly questioned this right, so long claimed and exercised ; 
but I find in the Congressinnal history of the country, 
conclusive evidence of her acquiescence in the exercise 
of it by Georgia. In 1790 Congress passed an act au- 
thorizing Georgia to lay a duty on tonnage for the pur- 
pose of clearing out certain obstructions in the Savan- 
nah river. Similar acts were passed in 1791 and '92. 
These acts were passed without objection on the part 
of South Carolina, as well as without her assent, which 
would not have been the case had the right of jurisdic- 
tion over the Savannah river by Georgia, been ques- 
tioned, or doubted, either by Congress or South Car- 
olina. Acts of the same character were passed by 
Congress again in the years 1800, 1808, 1814, and 
1822, and I have yet to learn of any objections being 
interposed on the part of South Carolina, to these se- 
ries of legislative recognitions of the claim of Georgia 
to the whole of the Savannah river. It is worthy of 
remark, that during the years 1790, 1791 and 1792, 
Mr. Pierce Butler, one of the commissioners on the 
part of South Carolina, of the Convention of Beaufort, 
was a member of the U. S. Senate. This acquiescence 
in those acts affords convincing proof, not only that in 



20 
his opinion the boundary line of Georgia extended to 
the northern part of the Savannah river, as contained 
in the charter of 1732, but that the construction which 
I have placed upon the treaty of Beaufort, is the cor- 
rect one. Mr. Butler was at that time fresh from the 
dehberations of the Beaufort Convention, and was pe- 
culiarly quahfied to protect the rights of his State in 
this regard, if he had considered the passage of these 
various acts as an infringement of those rights. Know- 
ing, however, as he did, that the right of navigation 
on the part of South Carolina, would not be injured, 
and that no other right in this respect had been ac- 
quired by that Convention, he very properly acqui- 
esced in the justice and propriety of these enactments. 
It may, however, be argued that these acts of Con- 
gress do not conflict with the right of South Carolina 
as now put forth. Mr. Desassure, one of your Senators 
in Congress, thinks otherwise. I notice in the debates 
of the last session of Congress, that when a similar en- 
actment was proposed by one of the Senators from 
Georgia, it was objected to by Mr. Desassure, on the 
ground that South Carolina claimed equal jurisdiction 
with Georgia over the Savannah River, thus showing 
that the objections on the part of South Carolina to 
these enactments of Congress, commenced pari passu 
with her claim. When there was no claim there was 
n^ objection. They are both of a modern date, and I 
sincerely trust will be of short duration. 

Reference is made by Col. Hayne to the language 
of the Constitution of Georgia of 1798, and an agree- 
ment is drawn from the fact, that it varies from the lan- 
guage of the act of the Legislature of 1783. Not only 
does it vary from that act, but also from the language 



21 
of the charter of 1732, as well as the language of the 
Convention of Beaufort, which is confirmatory of the 
view I have presented, that these different terms of 
expression, under the uniform construction placed upon 
them, were regarded and used as synonymous. The 
true meaning of them is to be ascertained from the co- 
temporaneous and unvarying construction of them. 

The view which I have taken and presented of this 
subject, renders it unnecessary for me to controvert 
that portion of the able argument of Col. Hayne, which 
discusses the general principles of law, bearing upon 
the construction of the terms employed in the various 
documents under consideration. In the absence of the 
more practical and satisfactory proofs which I have ad- 
duced, we might with propriety fall back upon these 
abstract principles, but in the present instance such a 
resort is unnecessary, I conclude, therefore, that the 
claim of Georgia to the exclusive jurisdiction of the 
Savannah River is not as " groundless" as it has been 
supposed to be. It rests as I have shown — 

First, Upon the plain and explicit language of the 
charter of 1732, as it is found in every hook in which it 
is given in extenso ; 

Secondly, Upon the undisputed and undisturbed 
enjoyment and exercise of the right for a great number 
of years ; 

Thirdly, Upon the uniform and unvarying construc- 
tion placed upon the various terms of expression used 
to define her boundary line ; 

Fourthly, Upon the acquiescence of South Caroli- 
na in the assertion and exercise of this right, as shown 
by her long silence and virtual assent to the acts of 
Congress referred to ; 



22 

Fifthly, By all the circumstances connected with 
the early history of the question, and the action of the 
two States, in reference to kindred questions, growing 
out of and dependent for their settlement upon the con- 
struction of the same instrument, which originates this 
one. 

Upon a careful review of the subject I entertain the 
hope that your Excellency will be satisfied that the 
claim of Georgia is well founded, and that her "long 
undisturbed possession should not now be questioned." 

In reference to the rights and privileges, claimed by 
the city of Augusta as owner of the bridge at that place, 
I must regard them as questions more properly apper- 
taining to the Judicial Department. At any rate I do 
not see that any good can result from an Executive 
discussion on that point. If it is contemplated to fa- 
cilitate the intercouse between the citizens of the two 
States at Augusta, by making the bridge free, it be- 
comes a question for Legislative consideration, and 
will, by this notice of it, be brought to the attention of 
the next General Assembly. 

I concur most fully in the views presented by Col. 
Hayne, for encouraging the freest commercial inter- 
course between the citizens of South Carolina and 
Georgia. Whatever may be the opinions of the ma- 
jority of our citizens on that subject, I am prepared to 
give my cordial co-operation to any and every move- 
ment, which has for its object the extension of the prin- 
ciples of free trade, whether applied to the intercourse 
of the citizens of neighboring States, or extended to 
the world at large- The fewer the restrictions placed 
upon commerce the better for the country ; and the 
prniciple is right, whether limited to small communities 



23 
or extended to the commercial intercourse ot the 
world. 

How far the General Assembly of this State will be 
disposed to go in granting the unUmited right of build- 
ing bridges across the Savannah River, I am not pre- 
pared to say. The effect which the building of such 
bridges might have upon the navigation of the river, 
would have much weight in determining their policy 
in this respect — and my information on that point is not 
sufficient to justify the expression of any opinion on 
the subject. 

Allow me, in conclusion, to express my own desire, 
as well as that of our citizens, that the future relations 
between South Carohna and Georgia, shall be of that 
kind and fraternal character which should ever mark 
the intercourse of two States, so identified in feehng 
and interest. 

In conformity with the suggestion of Col. Hayne's 
letter, I shall lay this correspondence before the Gener- 
Assembly of this State at its next regular session. 
I have the honor to be 

your Excellency's ob't serv't, 

HOWELL COBB. 






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